WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
The Coca-Cola Company v. EL\u0130F AKSOYEK DEG\u0130N
Case No. D2019-1790
1. The Parties
The Complainant is The Coca-Cola Company, United States of America, represented internally.
The Respondent is EL\u0130F AKSOYEK DEG\u0130N, Turkey.
2. The Domain Name and Registrar
The disputed domain name <coca-colacompany.net> (the “Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 25, 2019. On July 25, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On July 26, 2019, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 31, 2019. In accordance with the Rules, paragraph 5, the due date for Response was August 20, 2019. The Center received several communications from the Respondent, but the Respondent did not submit any formal Response. Accordingly, the Center proceeded to the panel appointment on August 21, 2019.
The Center appointed Mathias Lilleengen as the sole panelist in this matter on August 26, 2019. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
The Complainant has been using the COCA-COLA mark for the purposes of advertising and selling its products for more than 130 years. The Complainant has acquired considerable goodwill and reputation in its COCA-COLA brand. It is one of the most recognized marks in the world today. The mark is used for, among other things, beverages, and has been recognized as famous in UDRP proceedings.
The Complainant is the owner of trademark registrations consisting of or incorporating the trademark COCA-COLA, in all over the world, amongst which include the United States of America Trademark registration No. 1338789, registered on June 4, 1985. The Complainant has also registered more than 700 domain names containing its COCA-COLA mark, including <coca-colacompany.com> and <coca-colacompany.ca>. The Complainant has spent hundreds of millions of dollars to advertise and promote its products and services identified by the COCA-COLA mark internationally.
The Respondent registered the Domain Name on July 6, 2019. At the time of filing the Complaint, the Domain Name did not resolve to an active webite. At the time of drafting the Decision, the Domain Name resolved to a webpage that displayed products from a competitor of the Complainant.
5. Parties’ Contentions
The Complainant provides evidence of trademark registrations. The Complainant argues that the Domain Name is nearly identical to the Complainant’s trademark and could not refer to anyone other than the Complainant’s products. This creates a strong likelihood of confusion as to source, sponsorship, affiliation, or endorsement of the Domain Name by the Complainant. Thus, the Domain Name is confusingly similar to the Complainant’s COCA-COLA trademark.
The Complainant argues that the Respondent has no rights or legitimate interests in respect of the Domain Name. The Respondent is not a licensee of the Complainant, nor is the Respondent otherwise authorized by the Complainant to use the COCA-COLA mark. The Respondent is not known or identified by the name “coca-cola,” nor is he affiliated or connected in any way with the Complainant’s business. The Respondent does not operate a business or other organization commonly known as “coca-cola”. The Respondent has not acquired trademark or service mark rights for the COCA-COLA mark. There is no evidence of the Respondent’s use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services. At the time of submission of the Complaint, the Domain Name did not resolve to an active website.
The Complainant believes that the Respondent has registered the Domain Name to extract compensation from the Complainant. Following registration of the Domain Name, the Respondent began sending emails to senior leaders of The Coca-Cola Company (over 300 emails that were directed to 46 different employees). The Respondent has continued to send increasingly insistent emails to the senior leadership of The Coca-Cola Company. On July 19, 2019, the Respondent emailed an employee of the Complainant requesting USD 10,000 in exchange for the transfer of the Domain Name. This conduct was found to ascertain bad faith in numerous prior UDRP proceedings.
The Respondent did not reply to the Complainant’s contentions with a formal Response. However, as mentioned under the Procedural History, the Respondent has sent several emails to the Center, before and after the Panel Appointment. The Panel has reviewed the emails, and would like to insert the following parts:
“I never thought that an empty and derelict domain name might belong to a big, well equipped brand. Because I thought that a big and respectable brand should protect brand rights. Later, I realized that this domain name was the original domain name of Coca-Cola brand after 5 days.”
“The company uses many domain names originally. And because we have nothing to do with this company, we don't have all the original domain names info they use on behalf of the company. For this reason, we have the domain name that is the subject of the complaint. However, since we realized that this domain name is one of the original domain names used by the company, we preferred to contact Coca-Cola Company immediately. And in line with their response to us, we tried to communicate with them. I would like to mention in particular that we do not have any unethical behavior towards this company. We informed Coca-Cola Company about this issue and aimed to protect the company and did not commit any defects against them. I would also like to point out that as a well-equipped company, Coca-Cola Company would have to protect the trademark rights and the original domain names of the IT Departments on the Internet. Because an unprotected domain name that was open for sale on the internet could be owned and bought by any foreigner outside the company. We did not buy the domain name illegally and fraudulently. Moreover, when we realized this, we needed to inform the company immediately.”
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant has established that it has rights in the trademark COCA-COLA.
The test for confusing similarity involves the comparison between the trademark and the Domain Name. In this case, the Domain Name incorporates the Complainant’s trademark with the addition of a hyphen and the word “company”. The additions do not prevent a finding of confusing similarity between the Domain Name and the Complainant’s trademark. For the purpose of assessing confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic Top-Level Domain Name (“gTLD”) “.net”; see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11.
The Panel finds that the Domain Name is confusingly similar to a trademark in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Firstly, the Respondent seems to claim that after registering the Domain Name, he understood it may have been connected to the Complainant. This is not credible.
The Respondent also seems to argue that he had the right to register the Domain Name, because it was not registered by the Complainant and thereby “open for sale on the internet”. This is wrong, and precisely why the UDRP has been adopted.
The Complainant has made unrebutted assertions that it has not granted any authorization to the Respondent to register a domain name containing the Complainant’s trademark or otherwise make use of the trademark. Based on the evidence, the Respondent is not affiliated or related to the Complainant in any way. There is no evidence that the Respondent has registered the Domain Name as a trademark or acquired any rights. The Domain Name resolved to an inactive page and, currently resolves to a webpage with images of the competing beverage company, Pepsi. This does not constitute a bona fide use of the Domain Name.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name in accordance with paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Based on the evidence, the Panel finds it is more likely than not that the Respondent was aware of the Complainant when he registered the Domain Name.
The current use of the Domain Name and the fame of the Complainant’s trademark, supports a finding of bad faith registration and use. The Respondent has not provided any evidence of good faith use, nor a reasonable explanation for the registration.
The non-use of the Domain Name at the time of the filing of the Complaint does not prevent a finding of bad faith.
For the reasons set out above, the Panel concludes that the Domain Name was registered and is being used in bad faith, within the meaning of paragraph 4(a)(iii) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <coca-colacompany.net> be transferred to the Complainant.
Date: August 30, 2019